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Rochester Business Journal–Managers at Work Column
Kathleen Driscoll

"We’ve been working actively in our small business to devise a plan to return to the office, following all guidelines, of course. A few of our people can successfully do their jobs on a remote basis but I need a few others to be on site. Can I require them to return? And what is my liability should someone become sick with COVID? Some of our employees are nervous about coming in. Please advise.”

Bringing people back to the office might seem like an easy step if your company is following all guidelines. But lots of business owners, hearing from nervous employees, are worried about this very issue: Can you really require people to come back to the office?

Employees are understandably nervous about returning and aren't confident that their employers will make their workplaces safer. A July 30 survey by Udemy showed that only 41 percent of employees believe that their workspaces will be designed to enhance health and safety. And another 48 percent said they’d consider leaving their job if flexible work options aren't available. And a huge 72 percent of employees are worried that the "new normal” resulting from COVID-19 - and all the economic uncertainty going with it - will have a long-lasting negative effect.

"The findings of this study reveal a fragile workforce where everyone is fighting new battles,” explained Udemy Executive Cara Brennan Allaman in an industry article. "Were living through a time of intense and profound transitions. Organizational leaders should work to be agile in navigating successfully through these changes while also being open and honest with their employees about the challenges they encounter.”

Despite this high anxiety, the maze of health and safety regulations for employers and ongoing discussions over blanket COVID-19 liability shields for business, the short answer is yes, you can make people return to the office.

"Even if they can perform their jobs remotely, you can generally require employees to return to the workplace," says Sharon Stiller, partner and director of the employment law practice at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone LLP in Rochester. "Some employers want to do this because it’s easier to judge productivity.”

Employers have to ensure that their workplaces are safe, however, following guidelines by the Centers for Disease Control and Prevention and other agencies.

"An accommodation may be required for some employees, depending on whether they have a disability. But in general, fear of contracting COVID by an employee who is not previously disabled is not a sufficient reason to refuse to return to work." Stiller says.

Can you be held liable if an employee gets COVID?

If a worker becomes infected because of an exposure to COVID while they’re doing their job, it would be covered under the workers compensation insurance. That’s the theory but proving the connection between getting infected and the workplace is another story.

“It would most likely be denied as it is nearly impossible to prove exactly where an individual became infected," says Jonathan Bell, an employment attorney and small business expert and founder of the Bell Law Group PLLC in New York.

If, however, an employee contracted the virus as a result of "gross negligence” or “willful and wanton behavior” by the employer, (as in gross disregard for CDC protocols and guidelines), there could be additional exposure, says Greg Connors, founding partner of the law firm Connors & Ferris LLP in Rochester.

For workers compensation, the ability to prove a connection between the work and potential exposure would depend on the context - the kind of company; the work being done and the interactions your employees have during the course of their duties, Connors says. If you’re located in a health care setting, where more people have tested positive for the virus, for example, there would be a "stronger likelihood" that the employee would have been exposed to the virus there. But if you're in another type of business, perhaps in a small office, and no one tested positive, then it would be a much more difficult case to prove.

If an employee decides they do not want to return to the office, the employer can terminate them, but they might not be eligible for New York state unemployment, Conners says. I understand the concerns. I’m a small business owner, so I see both sides of it; he says. "When we brought our employees back into the office, we had to make sure we had the protocols and procedures in place to create as safe a place for employees as we could."

To be covered under workers’ compensation, employees would need a statement from a medical provider linking the contracting of COVID to the workplace. In addition, the Workers’ Compensation Board also adopted an emergency ru1e allowing fur reimbursement for COVID-19 testing when there is a claim for workers compensation benefits due to workplace exposure to the virus, Stiller says.

According to an online litigation tracker posted by the Fisher Phillips law firm, some 300 employee vs. employer lawsuits related to the COVID-19 outbreak have been filed in U.S. courts since the beginning of the year. Many of the suits were filed after employers refused to allow their people to work from home, or failed to provide adequate personal protective equipment or refused to grant requests for unpaid time off. Many of the complaints were filed by employees who alleged unlawful discrimination or retaliation.

As an "at will” employer, you do have "broad discretion," in how you handle employment issues, says Steve Modica. principal attorney at Modica Law Firm, but you still have to take care not to discriminate or take action motivated by an employee's membership in one or more protected classes, such as gender, age, race, disability, marital status and more. In this circumstance, you can require employees to work onsite unless they have a disability which prevents them from doing that.

"The employer is entitled to see medical confirming that the worker has a disability and needs a remote working option." He says. Under these circumstances, the employer is required to engage in an 'interactive process’ with the employee to determine whether the remote working option is reasonable and, if not, whether there are other reasonable accommodations.

"For example, does the employer have another position available that the employee is qualified to perform and can perform remotely?"

Issues around discrimination are only some of the Iegal issues arising in the COVID-19 online case tracker. Others include issues around medical leaves, wrongful termination, breach-of-contract or disputes over changes in the way employees are compensated, as well as accusations against employers failing to provide proper personal protective equipment.

As complicated as these legal issues are, there is the phenomenon of spread of COVID-19 which confounds all efforts to make workplaces safe.

“Those are the things that give me great pause," Connors says.